A federal appeals court in Washington on Friday upheld a law requiring the wildly popular social media app TikTok to be sold to a non-Chinese owner or face closure in the United States by next month. The court cited “persuasive” and “compelling” arguments presented by the federal government that TikTok poses a risk to national security.
The ruling could leave the 170 million Americans who regularly use TikTok without access to a social media platform that has enjoyed explosive global growth in recent years. It could also mean that the millions of Americans who create content for TikTok — some of whom rely on monetizing that content for their livelihood — could be cut off from their audiences.
The government has argued that TikTok presents a unique danger to national security because it collects vast amounts of information about its users, and because the Chinese government ultimately exercises control over its parent company, ByteDance, and over the algorithm that determines what content TikTok users see.
Because ByteDance is in the People’s Republic of China (PRC) it is subject to that country’s laws, including measures requiring private companies to cooperate with government intelligence agencies.
The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit found that the government has a compelling interest in taking steps “to counter the PRC’s efforts to collect great quantities of data about tens of millions of Americans” and “to limit the PRC’s ability to manipulate content covertly on the TikTok platform.”
TikTok signals an appeal
TikTok immediately signaled that it would appeal the circuit court’s ruling to the Supreme Court.
In a statement posted to its website, the company said, “The Supreme Court has an established historical record of protecting Americans’ right to free speech, and we expect they will do just that on this important constitutional issue.”
The company said that the law underlying the case “was conceived and pushed through based on inaccurate, flawed and hypothetical information, resulting in outright censorship of the American people,” and warned that it “will silence the voices of over 170 million Americans here in the U.S. and around the world.”
The Supreme Court is not obligated to hear the company’s appeal, and it was not immediately clear that it would do so. If the high court accepts the case, it is possible that it would block the government from enforcing the law until the case is decided.
President-elect Donald Trump, who once supported a TikTok ban before changing his mind during the recent presidential election, has suggested that he will act to save the app when he takes office. However, it is unclear what options he might have for doing that.
Lack of trust
In April, President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act into law. The measure gave TikTok 270 days to find a way to separate itself from ByteDance before a ban on the application would kick in on January 19, 2025.
The federal government made it clear that the only kind of divestiture that it would accept was a complete separation of TikTok from its Chinese parent. The company offered alternatives, and established TikTok U.S. Data Security Inc. (TTUSDS) as a subsidiary in Delaware, to wall off U.S. user data from ByteDance.
However, the government cited instances in which U.S. user data that the company claimed to have shielded from the PRC was, in fact, accessible to ByteDance employees in mainland China. It told the court that it lacked “the requisite trust” that “ByteDance and TTUSDS would comply in good faith” with any arrangement other than complete separation of TikTok and ByteDance.
In Friday’s ruling, the judges wrote, “The court can neither fault nor second-guess the government on these crucial points.”
First Amendment concerns
TikTok and its supporters have claimed that severing TikTok from ByteDance is both practically impossible for technological reasons and legally impossible because the Chinese government will block the sale of the company. Therefore, they claim, the law constitutes a de facto ban and a violation of the guarantee of free speech enshrined in the First Amendment to the Constitution.
In a sign of how seriously the court took the First Amendment arguments, the panel of judges agreed that the law should be subject to “heightened scrutiny,” which the Supreme Court has applied to measures restricting fundamental rights.
In the end, the panel determined that the law satisfies even the most stringent form of “strict scrutiny,” which requires that the government “prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”
Free speech advocates respond
The decision came under immediate criticism from free speech advocates.
“Although we’re still analyzing the decision, we find it deeply disappointing,” David Greene, civil liberties director at the Electronic Frontier Foundation, said in a statement emailed to VOA. “The court appropriately applied strict scrutiny as we have urged it to. But the strict-scrutiny analysis is lacking, relying heavily on speculation about possible future harms.
“Restricting the free flow of information, even from foreign adversaries, is fundamentally undemocratic,” Greene said. “Until now, the U.S. has championed the free flow of information and called out other nations when they have shut down internet access or banned online communications tools like social media apps.”
George Wang, a staff attorney at the Knight First Amendment Institute at Columbia University, told VOA that the court accorded “a shocking amount of deference” to the government’s claims about the danger TikTok poses to national security.
“We should be really wary whenever we allow the government to use vague national security arguments as a justification to shut down speech,” Wang said. “That’s a tactic of authoritarian regimes, not democracies. It’s usually the job of courts to stand up to the government when it infringes on the constitutional rights of millions of Americans, and I think the D.C. Circuit really didn’t do that today.”
‘A victory for the American people’
Representative Raja Krishnamoorthi, the senior Democrat on the House Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party, and one of the original sponsors of the law requiring TikTok’s divestiture or ban, released a statement Friday praising the court’s decision.
“With today’s opinion, all three branches of government have reached the same conclusion: ByteDance is controlled by the Chinese Communist Party, and TikTok’s ownership by ByteDance is a national security threat that cannot be mitigated through any other means than divestiture,” Krishnamoorthi said.
“Every day that TikTok remains under the Chinese Communist Party’s control is a day that our security is at risk,” Krishnamoorthi added.
Representative John Moolenaar, the committee’s Republican chairman, said in a statement that the ruling was “a victory for the American people and TikTok users, and a loss for the Chinese Communist Party, which will no longer be able to exploit ByteDance’s control over TikTok to undermine our sovereignty, surveil our citizens and threaten our national security.”
Moolenaar also held out hope to the app’s users that access to it may, in the end, be preserved under a Trump presidency.
“I am optimistic that President Trump will facilitate an American takeover of TikTok to allow its continued use in the United States and I look forward to welcoming the app in America under new ownership,” Moolenaar said.
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